Hunley v. Ingle

• Decision Date: 09 December 1915
• Docket Number: 12637.
• Citation: 88 Wash. 446,153 P. 313
• Court: Washington Supreme Court
• Parties: HUNLEY v. INGLE.

153 P. 313

88 Wash. 446

HUNLEY v. INGLE.

No. 12637.

Supreme Court of Washington

December 9, 1915

Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Action by J. B. Hunley against B. F. Ingle. From a judgment for defendant, plaintiff appeals. Affirmed.

Morgan & Brewer, of Hoquiam, for appellant.

Martin F. Smith and Geo. D. Abel, both of Hoquiam, for respondent.

FULLERTON J.

The Hoquiam Dairy & Ice Cream Company is a corporation organized and existing under and by virtue of the laws of the state of Washington. It has a capital stock of $10,000, divided into 100 shares of the par value of $100 each. On August 20, 1913 these shares were owned or controlled by one Peter Hunley and the respondent, B. F. Ingle, the former owning and controlling 50 1/2 shares and the latter 49 1/2. On the day named the respondent sold and transferred his shares to the appellant, J. B. Hunley, for a consideration of $2,900, $600 of which was paid in cash and the balance by promissory notes, four in number, one for the sum of $300 one for $666, and two for $667 each, becoming due at different dates. Later on the appellant conceived that he had been defrauded in the transaction, and on November 6, 1913 instituted the present action to rescind the sale. In his complaint he alleged that the respondent prior to the sale had the sole charge and management of the business of the corporation, the possession and charge of its books of account, and was fully aware of its financial condition, and, in order to induce the appellant to purchase the shares, made false and fraudulent representations to him concerning its financial condition, representing that the concern was solvent, was being operated at a profit, and had netted in the previous month more than $500 over and above its expenses. He further alleged that these representations were untrue; that the corporation was in fact insolvent; that it was being run at a loss; that, instead of netting $500 over and above its expenses for the month named, it was run at a loss during that month; that he was deceived by these representations and induced to thereby purchase the stock, whereas had the truth been told him concerning the financial condition of the corporation, he would not have purchased the stock. Issue was taken on the allegations of the complaint, and a trial was entered upon before the court sitting without a jury. After the trial had progressed for one day and the part of another, the court ordered the proceedings suspended before the court direct, ordered the testimony then taken to be transcribed, and made a reference of the cause to a referee, directing the referee to continue the hearing of the cause from the point where the court had left it, and made and report to the court his findings of fact and conclusions of law on the issues involved in the cause. The referee appointed continued the hearing of the evidence, and at the conclusion thereof made findings of fact and conclusions of law favorable to the respondent. These were reported to the court, and, with certain minor exceptions, adopted by it. Judgment was thereafter entered accordingly, and this appeal prosecuted therefrom.

The appellant has moved in its reply brief to strike the respondent's brief, contending that it does not comply with the statute or the rules of the court in its references to the record. The respondent has made a counter motion to strike the reply brief because of discourteous references made therein to opposing counsel, to the referee and to the trial court. Neither of these motions will be granted: The method of making references to the record in the first brief asked to be stricken has caused the court no inconvenience and, as opposing counsel have replied to the merits without taking the ruling of the court upon their motion, we have the right to assume, we think, that they did not find the objection an...